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Defense of Eavesdropping Is Met With Skepticism in Senate

WASHINGTON, Feb. 6 -- Attorney General Alberto R. Gonzales told a sometimes skeptical group of senators today that the Bush administration's domestic eavesdropping program is legal, constitutional and vital to national security in a time of terrorism.

"I am here to explain the department's assessment that the president's terrorist surveillance program is consistent with our laws and Constitution," Mr. Gonzales testified before the Senate Judiciary Committee. "It's an early-warning system designed for the 21st century."

Mr. Gonzales said President Bush would have been irresponsible not to have authorized the National Security Agency to undertake the surveillance program after the attacks of Sept. 11, 2001. "And as with all wartime operations, speed, agility and secrecy are essential to its success," he said.

"Congress has given the president authority to monitor Al Qaeda messages legally, with checks to guard against abuses when Americans' conversations and e-mails are being monitored," Mr. Leahy said. "But instead of doing what the president has the authority to do legally, he's decided to do it illegally, without safeguards."

But throughout his testimony, Mr. Gonzales refused to retreat. Nor did he appear rattled in the least when Senator Russell D. Feingold, Democrat of Wisconsin, accused him of having misled the committee about the very existence of the program in his testimony a year ago, when his nomination to be attorney general was being considered.

Not so, the attorney general insisted, saying that he had answered a "hypothetical question" a year ago.

Mr. Gonzales told the panel today that the N.S.A. eavesdropping program is authorized by the section of the Constitution pertaining to presidential powers; that Congress gave specific authority with a sweeping resolution shortly after 9/11; and that nothing in the 1978 Foreign Intelligence Surveillance Act regulating electronic eavesdropping is meant to block the N.S.A. program. Finally, he said, the program has built-in safeguards and is regularly reviewed by government lawyers.

As for news accounts about the domestic eavesdropping, Mr. Gonzales said, they have been "in almost every case, in one way or another, misinformed, confused or wrong."

The attorney general, who as White House counsel from 2001 to early 2005 provided legal support for the program, was scheduled to be in front of the committee all day. Mr. Specter said the session would continue on another day.

As expected, the session produced heated exchanges, albeit accompanied by formal courtesy, between the witness and the lawmakers. At one point, a protester created a brief disturbance in the hearing room and was told by Mr. Specter to shut up or get out.

Democrats emphasized again and again that regardless of their reservations about the administration's eavesdropping operation, they were as committed as their Republican colleagues to national security. "We all support a strong, robust and vigorous national security program," said Senator Charles E. Schumer, Democrat of New York. "According to the rule of law."

The 1978 FISA Act, passed in response to surveillance abuses during the cold war and Vietnam eras and by the Nixon administration, requires the N.S.A. and the Federal Bureau of Investigation to obtain warrants from a special secret court before conducting electronic surveillance of people suspected of being terrorists or spies. Critics of the administration's surveillance program have noted that it is extremely rare for the FISA court to deny applications for warrants.

Gen. Michael V. Hayden, who headed the N.S.A. when it began the surveillance, acknowledged in a recent speech that officials running the program have demanded a standard of evidence lower than generally demanded by the courts, including the special FISA court. The N.S.A. program calls for "a reasonable standard to believe" there might be wrongdoing, rather than "probable cause," said General Hayden, now the principal deputy director of the new national intelligence agency.

The FISA law provides that, under "extraordinary" circumstances, the government can also wait 72 hours after beginning wiretaps to get a warrant. But the Bush administration did not seek to follow that procedure under the recently disclosed N.S.A. program, which monitors the international communications of some people inside the United States.

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"That review process can, of necessity, take precious time," Mr. Gonzales told the panel in a written statement. He argued that the steps to obtain warrants after the fact are far more cumbersome than is generally understood, and unnecessarily shackles a nation fighting a stateless, faceless enemy whose character was illustrated by a recent terrorist message: "The Islamic youth are preparing for you what will fill your hearts with horror."

Senator John Cornyn, Republican of Texas, said he found it odd that the United States could capture terrorists, "kill if necessary," but that according to some of the reasoning he had heard, "we can't listen to their phone calls."

Furthermore, Mr. Cornyn said, the shorthand used to describe the program Â "domestic surveillance" Â perpetuates a fundamental misconception, since the program is aimed at communications in which at least one party is outside the United States.

Senator Orrin G. Hatch, Republican of Utah, said it was appropriate that an administration seek new ways to protect the country. "We are faced with a war unlike any we have ever been in," he said.

But Mr. Leahy took a different tack. "Now, a couple generations of Americans are too young to know why we passed this law," he said of the 1978 statute. "It was enacted after decades of abuses by the executive, including the wiretapping of Dr. Martin Luther King and other political opponents."

"Mr. Attorney General," Senator Leahy said at one point, "I'm getting the impression this administration picks and chooses what it's subject to."

Later, Senator Edward M. Kennedy, Democrat of Massachusetts, suggested that it was wrong to think of the late 1970's as somehow inherently safer than the 21st century. "We've got terrorism now, but it was a nuclear threat then," he said

There were several minutes of tension early on, after Mr. Specter said it was not necessary for Mr. Gonzales to be placed under oath. Senator Feingold differed.

"Mr. Chairman, I just say that the reason that anyone would want him sworn has to do with the fact that certain statements were made under oath at the confirmation hearing," Mr. Feingold said. "So, it seems to me, logical that since we're going to be asking about similar things, that he should be sworn in this occasion as well."

Mr. Feingold has made it clear he is angry about Mr. Gonzales's response a year ago to Mr. Feingold's question about whether he thought the president could, as commander in chief, authorize searches and wiretaps without warrants. Mr. Gonzales said then that "what we're really discussing is a hypothetical situation."

When Mr. Feingold pushed to have Mr. Gonzales sworn in, Mr. Specter called for a vote. The committee voted, 10 to 8, along party lines not to have Mr. Gonzales sworn in.

Mr. Feingold was clearly angry when his turn came to question Mr. Gonzales. "You wanted this committee and the American people to think that this kind of program wasn't going on," he said. "But it was."

Not so, Mr. Gonzales insisted. Last year, he said, Mr. Feingold asked him whether he thought the president could authorize eavesdropping "in violation of the law," and that the question was therefore hypothetical.

"I was telling the truth then," the attorney general said. "I'm telling the truth now."